Anticipation of the system to which the succession should be connected
When the agreement concerns the succession of more than one person, Article 25[1] always requires us to place ourselves on the day when the agreement was concluded and anticipate the determination of the applicable law. But, it indicates an approach in two steps. We must begin by checking the admissibility of the agreement before determining the law applicable to its validity.
We must first check that the agreement is admissible under the laws which would have been applicable to the succession of each of the people if they had died on the day on which the agreement was concluded. The practitioner must therefore carry out a cumulative application of the laws, giving preference to the more restrictive of them.
Note :
Receivability is a notion that is not defined by the Regulation. In principle, it is the same as that of admissibility. We must therefore check that the laws involved accept the principle of agreements as to succession.
We will therefore need to adopt the same approach as previously. In principle, we must consult the law of the habitual residence of each of the persons concerned.
Example :
If the agreement is concluded between two spouses, one of whom resides in Italy and the other in Germany, the agreement is not receivable since Italian legislation does not accept the principle of such agreements.
By exception, this law will be set aside if the agreement is more closely connected with another State (distributively for each of the persons concerned).
Finally if the persons concerned or one of them previously specified his law applicable to successions as being applicable to his succession, it is also applicable to the receivability of the agreement.
Once the admissibility of the agreement has been established, we then address the question of the law applicable to the validity of the agreement. Insofar as it is impossible to make a arbitrary choice between the laws identified previously, as they have equivalent grounds to be applicable, the text has opted for a compromise solution based on the principle of proximity: “The agreement is governed by the law, from among those referred to in the first subparagraph, with which it has the closest connection.”
Depending on the situation, the applicable law will be either the law of residence of one of the persons concerned, or the national law of one of them, or the law specified pursuant to the exception clause.
Warning : Which elements should be taken into account to decide between the two laws that potentially apply to the agreement? Is it possible to take account of elements after the conclusion of the agreement?
If the agreement was concluded in Germany between a German resident and an Austrian resident: Can we consider that the connections with Germany are closer?
If the agreement concerns assets located mainly in Germany: can we consider that the agreement is more closely connected with Germany?
If, after the agreement, the German resident settled in Austria: can we consider that the agreement is more closely connected with Austria?
It is clear that application of the principle of proximity is a source of insecurity and unpredictability as regards the solutions and largely rests on the shoulders of the practitioner. It is likely to give rise to disputes in the future, when the laws involved produce radically opposite results on the matter of validity.
There is, however, one way of preventing its application: It is enough that the parties to the agreement make a choice of law for the agreement .
Warning : Risk of depecage
There is a genuine risk that the practitioner will have to apply several laws on the day when the succession is opened: the more people are concerned, the greater the risks.
And whereas for wills and agreements as to the succession of one person, a choice of law in succession matters guarantees that a single law would be applicable to the instrument making a disposition of property upon death and the succession, the same does not apply when the agreement concerns the succession of several people.
Example :
A couple resides in France: one partner is Austrian, the other German. Each of the partners has made their succession subject to their national law by a disposition of property upon death. They then conclude an agreement as to succession. Admissibility of the agreement as to succession must be checked pursuant to German and to Austrian law. Validity of the agreement will be governed by the law which has the closest connection with the agreement. If we suppose that this is German law, only in the case of the German deceased will both the agreement and the succession be governed by the same law. For the Austrian deceased, however, German law will apply to the agreement and Austrian law to the succession.